Congress and the President are taking a break, but the ADA and FHA cases keep coming. It has been an unusual few weeks because we have two circuit court opinions to discuss, though neither breaks much new ground. A third circuit court decision – Mielo v. Steak and Shake Operations – will get a blog of its own.

Temporary obstructions under the ADA

One of the circuit court decisions is Hillesheim v. Myron’s Cards and Gifts, Inc., 17-1408, 2018 WL 3602372 (8th Cir. July 27, 2018), which deals with problem of aisles blocked by “temporary” obstructions. We’ve blogged about this before* and the law really hasn’t changed. DOJ’s regulations acknowledge that aisles that are required to be 36″ wide will from time to time be blocked when shelves are being re-stocked or perhaps repaired. This doesn’t excuse the case in which the aisles are always blocked with something temporary. The line between temporary obstructions and permanent clutter can be hard to draw, and early in a lawsuit is not when hard lines are drawn. In this case the District Court dismissed a claim based on clutter in the aisles, applying an absolute rule that temporary obstructions could not violate the ADA. The Eighth Circuit disagreed, finding that the issue required factual development to decide whether the temporary obstructions were really temporary. This put it in line with the earlier cases cited in our past blogs. More

On December 21, 2017 Attorney General Jeff Sessions announced that the Department of Justice was withdrawing 25 guidance documents related to disabilities and other forms of discrimination.* The documents were withdrawn because, according the Department of Justice, they were outdated, used to circumvent the regulatory process, or went beyond the requirements of the regulations.

The politics of these withdrawals will certainly be subject to debate, but the impact on businesses is less certain. This blog will discuss the effect (if any) on how public accommodations deal with service animals. Tomorrow we’ll cover construction related topics and the day after remaining items of interest for business.

The guidances concerning service animals that have been withdrawn are:

“Commonly Asked Questions about Service Animals in Places of Business” published July 1996 and updated January 14, 2008.

“ADA Business Brief – Service Animals” published April 2002

Not withdrawn in this list of guidances were:

“Frequently Asked Questions about Service Animals and the ADA” published July 2015

“ADA 2010 Revised Requirements Service Animals” published July 2011

Comparing the withdrawn guidances to those that have been retained, at least for now, reveals only a few differences.

the 1996 “Commonly Asked Questions” includes in the term service animal “any animal individually trained” to perform a service. This contradicts existing regulations, which limit the term “service animal” to dogs. (28 CFR §36.104).

The 1996 “Commonly Asked Questions” suggested that the only question permissible by a business owner was whether the animal “is a service animal required because of a disability.” This contradicts existing regulations, which permit two questions: “if the animal is required because of a disability and what work or task the animal has been trained to perform.” (28 CFR §36.302(c)(6)).

The “ADA Business Brief” somewhat misleadingly says that businesses can be required to pay money damages and penalties. This is only true in actions brought by the Attorney General. Ordinary plaintiffs can obtain only injunctive relief and attorneys’ fees.

More interesting is the tone of the guidances that were not withdrawn. They are hardly business friendly, but they accurately describe the regulations that apply and the limits on what businesses must do. A few examples:

The answer to question 13 in the “Frequently Asked Questions” makes it clear that service dogs cannot block the space between tables in a restaurant, but must be under the table.

The answer to question 22 confirms that service dogs cannot sit at a table or be fed in the restaurant.

The 2010 Revised Requirements make it clear that in most cases a service animal must be harnessed or leashed – the exception is when it’s job requires that it be loose. This is consistent with the regulations (28 CFR §36.302(c)(4)). A surprising number of businesses report that individuals claiming to be disabled will insist that their dog be off leash.

Oddities remain, and if the Department of Justice really wants to make its regulations and guidances meet the goals of the ADA without inviting abuse it could take some additional steps. For example:

DOJ’s position on public health is that service dogs can be required to comply with local public health requirements concerning shots and registration, but not with local health requirements concerning the service of food. A dirty dog at a salad bar is far more likely to cause public health problems than a clean dog without tags. Business owners should be allowed to exclude dogs that are obviously dirty or diseased because they are a threat to public health.

DOJ permits local authorities to limit the use of accessible parking to those with appropriate identification, and permits businesses to ask for credible evidence of a disability (such as a local disability placard) for individuals using motorized devices other than wheel chairs. (32 CFR §36.311(c)(2).) There is no reason not to allow businesses to ask for similar credible evidence of a disability before allowing a supposed service animal on the premises when the disability is not obvious.

Dogs are required by regulation to be under the handler’s control and housebroken. Owners should be permitted to ask not only what task the dog has been trained to perform, but also whether it is housebroken and trained to behave in public.

In this connection the Department of Justice needs to ask what it can do to stop the business of selling fake disability certifications to people who are not disabled and the business of selling fact certificates, vests, etc. for dogs that are not service dogs. Question 17 in the FAQ recognizes the latter problem, but DOJ needs to take responsibility for the fact that its guidance and regulations created these organized on-line scams. The limits DOJ places on business owners invited ADA fraud and created the fake service animal problem businesses face today. It’s nice to get rid of out-dated guidances, but what business really needs is permission to ask obviously pertinent questions like “what is your disability” and “why is your dog necessary for you to use and enjoy our facility and services?”

Finally, withdrawing these guidances should be seen as a first step to providing a single, easy to understand guide to the ADA for businesses. The fact that DOJ has two guidances on service dogs as well as many other individual guidances on particular business obligations and a 2011 Primer for Small Business and the still in effect 1999 Small Business Guide reflects an organizational failure to keep track of what it has said and when it said it. Even guidances and other publications that are correct need to be eliminated and replaced by a single resource to which businesses can confidently turn for all of their questions.

On October 2, 2017 the Supreme Court denied the plaintiff’s petition for certiorari in McGee v. Coca Cola Refreshments U.S.A., Inc., letting stand the decision by the 5th Circuit holding that Coca Cola vending machine was not a “place of public accommodation” covered by Title III of the ADA.* Last month a District Court in the Eastern District of Pennsylvania applied the same reasoning to a DVD rental kiosk. Nguyen v. New Release DVD, LLC, CV 16-6296, 2017 WL 4864995 (E.D. Pa. Oct. 27, 2017). Neither McGee nor Nguyen mention an earlier case, Jancik v. Redbox Automated Retail, LLC, 2014 WL 1920751 (C.D. Cal. May 14, 2014) that also attacked automated machines allowing DVD rentals. Interestingly enough, in Jancik v Redbox the defendants conceded that their DVD rental kiosks were places of public accommodation subject to Title III of the ADA. It apparently never occurred to them that the difference between a public accommodation and a mere “service” was whether the goods were delivered by a machine instead of a human. Were they wrong? These cases illustrate a real problem with the way “public accommodation” is defined in Title III. More